Two
sentencing guidelines diverge in how they treat time spent in
state custody on relevant conduct that is accounted for in a
defendant's federal sentence, and that makes all the
difference in this case.[1] U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 5G1.3(b) requires the
district court to "adjust" a defendant's
sentence to credit him for time served in state custody on
relevant conduct covered by his federal sentence-but only
when the defendant has undischarged time remaining on his
state sentence. Meanwhile, U.S.S.G. § 5K2.23
allows a district court to exercise discretion to
"depart[]" from a guidelines sentence to reflect
credit for time served in state custody on relevant conduct
covered by his federal sentence when the related state
sentence is completely discharged at the time of federal
sentencing.

Because
the guidelines contemplate an "adjustment" under
Part G of Chapter 5, when a district court exercises its
discretion to reduce a defendant's sentence under 18
U.S.C. § 3582(c)(2) after a guideline amendment, the
court must also credit the defendant for time served on an
undischarged state sentence. But since the
guidelines envision a "departure" under Part K of
Chapter 5, a district court is prohibited in §
3582(c)(2) proceedings from crediting the defendant for time
served on a discharged state sentence.

Here,
at Defendant-Appellant Jose Antonio Gonzalez-Murillo's
original sentencing, he moved for credit under U.S.S.G.
§ 5G1.3(b) for thirteen months' imprisonment he
served in Mississippi custody on relevant conduct covered by
his federal sentence. Though the district court purported to
credit Gonzalez-Murillo under § 5G1.3(b) for that time
against his federal sentence, it referred to what it did as a
"departure." So when Gonzalez-Murillo sought a
reduced sentence under 18 U.S.C. § 3582(c)(2) following
a guideline amendment, the district court granted his motion
and sentenced him to the low end of the amended guidelines
range, but it determined that it lacked the authority to
adjust his sentence to reflect credit for time served in
Mississippi custody on relevant conduct.

We have
independently reviewed the record, and it is not clear to us
whether, at the time of Gonzalez-Murillo's original
sentencing, Gonzalez-Murillo's state sentence of
imprisonment was entirely discharged or whether, instead,
Gonzalez-Murillo had additional state time remaining to be
completed. Since the answer to that question drives the
answer to whether, in Gonzalez-Murillo's §
3582(c)(2) proceeding, the district court was required to
credit or prohibited from crediting Gonzalez-Murillo's
Mississippi time, we remand this case to the district court
to resolve that question and, if appropriate, modify
Gonzalez-Murillo's reduced sentence accordingly.

I.

A.
The Offense Conduct

The
United States began investigating Jose Antonio
Gonzalez-Murillo for drug-trafficking activities in 2008. On
April 13, 2010, while Gonzalez-Murillo was under federal
investigation in Florida, local law-enforcement officers
stopped him as he rode through Richland, Mississippi, on his
way from California to Florida. In the car, officers found
more than 4.6 kilograms of methamphetamine.

Based
on this discovery, Mississippi charged Gonzalez-Murillo with
possession of a controlled substance, and he remained in the
custody of Mississippi authorities pending resolution of
those charges. He pled guilty on April 4, 2011, and, based on
the presentence report ("PSR") in the federal case
before us now, was purportedly sentenced to ten years'
imprisonment, with six years suspended.

In the
meantime, on December 2, 2010, in the Middle District of
Florida, the United States obtained an indictment against
Gonzalez-Murillo, stemming in part from his arrest in
Mississippi. As relevant here, the indictment charged
conspiracy to possess with intent to distribute
methamphetamine.

On
April 13, 2011, for the purposes of obtaining
Gonzalez-Murillo's presence at his initial appearance on
the federal charge, the United States filed a petition in the
Middle District of Florida for a writ of habeas corpus ad
prosequendum directing the United States Marshal to take
custody of Gonzalez- Murillo, who was then confined in the
Rankin County Jail in Brandon, Mississippi, into federal
custody from the state of Mississippi. The writ was issued on
April 14, 2011. In its summary of disposition of the
Mississippi conviction, the PSR indicates that
Gonzalez-Murillo was "released to United States Marshals
Service" on April 19, 2011.

Notwithstanding
the earlier issuance of a writ, however, the Middle District
of Florida court docket indicates that Gonzalez-Murillo was
arrested in the Southern District of Mississippi on April 21,
2011. Gonzalez-Murillo made his initial appearance on the
federal charges before a Southern District of Mississippi
magistrate judge, pursuant to Fed. R. Crim. P. 5(c)(2). At
this proceeding, counsel for the government moved that
Gonzalez-Murillo be detained. After Gonzalez-Murillo waived
his right to a detention hearing, the magistrate judge
remanded the defendant to the Marshal to await transfer to
the Middle District of Florida.[2]

On May
11, 2011, Gonzalez-Murillo was arraigned in the Middle
District of Florida on the federal indictment. At this
arraignment, the magistrate judge stated that it appeared
that Gonzalez-Murillo was potentially eligible for bail,
based on an April 19, 2011, federal Pretrial Services report
indicating that Gonzalez-Murillo had been released from his
Mississippi sentence. The Assistant United States Attorney
confirmed his understanding that the Mississippi sentences
had "ultimately resulted in time served" and argued
that Gonzalez-Murillo should be detained. Counsel for
Gonzalez-Murillo indicated his belief that the court could
set reasonable conditions of release but stated that he would
make any argument for release by a later motion.

Ultimately,
Gonzalez-Murillo entered a guilty plea to the conspiracy
count. In his plea agreement, Gonzalez-Murillo admitted, as
part of the factual basis for his guilty plea, that he was
"in the process of transporting approximately 12 pounds
of methamphetamine" on April 13, 2010, when he was
arrested in Mississippi.

B.
Gonzalez-Murillo's 2011 Sentencing

At
Gonzalez-Murillo's federal sentencing, the district court
used the Sentencing Guidelines Manual in effect as of
November 1, 2011, to determine an offense level of 31 and an
advisory guidelines range of 108 to 135 months'
imprisonment. In calculating that range, the court held
Gonzalez-Murillo responsible for offense conduct involving at
least five, but less than fifteen, kilograms of
methamphetamine, corresponding to a base offense level of 36
at that time.[3] As part of this
determination, the district court included the Mississippi
events as relevant conduct under U.S.S.G. § 1B1.3.

During
the sentencing, it became clear that the district court
thought that a total sentence at the low end of the
guidelines range would be appropriate to punish
Gonzalez-Murillo for all of his relevant conduct, including
the Mississippi events. The government agreed.

Gonzalez-Murillo
noted that he had served roughly thirteen months in state
custody for the Mississippi events and sought credit under
U.S.S.G. § 5G1.3(b)(1) for that state custody on his
federal sentence. Though the government did not object, it
recommended (without referencing U.S.S.G. § 5K2.23) that
the district court impose the credit in the form of a
departure or a variance to be sure that Gonzalez-Murillo
received his credit. The district court agreed that
Gonzalez-Murillo was entitled to credit for his time in
Mississippi custody because that time was for relevant
offense conduct. Describing the government's suggestion
as the "safest thing, " the district court decided
to grant the thirteen-month credit by calling it a
"departure."

So the
district court subtracted thirteen months from the low end of
the guideline range (108-135) to arrive at a sentence of 95
months' imprisonment. In pronouncing the sentence, the
district court explained that it had "sentenced
[Gonzalez-Murillo] at the low end of the advisory guideline
range after [it had] departed." It further noted that it
had "sentence[d] [Gonzalez-Murillo] to 95 months . . .
based on [U.S.S.G. §] 5G1.3(b)."

In the
Statement of Reasons for Gonzalez-Murillo's sentence, the
district court described itself as having imposed a
"departure pursuant to U.S.S.G. [§] 5G1.3(b)(1),
and adjusted the sentence for the time already served in
[Mississippi], that is relevant conduct and will not be
credited to the federal sentence by the Bureau of
Prisons."

At one
point, the district court noted that Gonzalez-Murillo had
been sentenced to ten years' imprisonment in the
Mississippi case.[4] At no time during the sentencing hearing,
however, did the parties indicate that Gonzalez-Murillo had
any time remaining to be served on that earlier sentence. For
example, defense counsel never requested that the federal
sentence be made to run concurrently with the state sentence,
and the court indicated that Gonzalez-Murillo would remain in
the Marshal's custody pending designation of a federal
facility.

C.
The Motion for Sentence Reduction

In
February 2016, Gonzalez-Murillo filed a motion for sentence
reduction under 18 U.S.C. § 3582(c)(2). In support of
his application, Gonzalez-Murillo argued that Amendment 782
to the Guidelines, made retroactively applicable through
Amendment 788, reduced to 34 the offense level associated
with the drug quantity for which he was held responsible. As
a result, Gonzalez-Murillo contended, the amendments had the
effect of decreasing his guidelines range to 87 to 108
months' imprisonment, making him eligible for a reduction
of his sentence. As Gonzalez-Murillo viewed things, the
district court could choose to reduce his sentence as low as
74 months' imprisonment, since the low end of the
guidelines range was 87 months, and the district court had
previously found that, under U.S.S.G. § 5G1.3(b)(1), he
was entitled to 13 months' credit for time served in
Mississippi.

Though
the government did not oppose Gonzalez-Murillo's request
to be resentenced at the low end of the amended guidelines
range-87 months' imprisonment-it argued that the district
court lacked the power to grant any further reduction. In
particular, the government described the thirteen-month
credit that the district court had applied at the original
sentencing as a "departure" under § 5G1.3 and
argued that since, in its view, § 5G1.3 authorizes
departures only, a district court may not reapply a
sentencing credit on resentencing under § 3582(c)(2).

The
district court agreed with the government.[5] It reduced Gonzalez-Murillo's sentence
to 87 months. But it concluded that it was not authorized to
impose a sentence below 87 months. Like the United States,
the court characterized itself as, at the original
sentencing, having credited Gonzalez-Murillo under §
5G1.3(b)(1) for the thirteen months in Mississippi. Yet the
district court described what it had done as a
"departure." And since a district court may not
apply a departure, other than one based on substantial
assistance, in § 3582(c)(2) reduced-sentencing
proceedings, the district court did not credit
Gonzalez-Murillo for the thirteen months in Mississippi.
Gonzalez-Murillo now appeals.

II.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
considering on appeal a proceeding to modify a sentence under
18 U.S.C. &sect; 3582(c)(2), we review de novo the
district court's legal conclusions regarding the scope of
its authority under the Sentencing ...

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